County of Montgomery v. Deer Creek, Inc.

\                              NO. 5-97-0117

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE COUNTY OF MONTGOMERY,            )  Appeal from the 
                                     )  Circuit Court of 
     Plaintiff-Appellant,            )  Montgomery County.
                                     )  
v.                                   )  No. 95-MR-30
                                     )
DEER CREEK, INC.,                    )  Honorable
                                     )  John P. Coady, 
     Defendant-Appellee.             )  Judge, presiding.  
_________________________________________________________________

     PRESIDING JUSTICE WELCH delivered the opinion of the court:  
     On January 2, 1997, the circuit court of Montgomery County
granted a cross-motion for summary judgment by defendant, Deer
Creek, Inc., in favor of defendant and against the plaintiff, the
County of Montgomery, Illinois.  The circuit court ruled that
defendant's campground development, Deer Creek, is not a
subdivision within the meaning of the Montgomery County Subdivision
Ordinance or the Plat Act (765 ILCS 205/0.01 et seq. (West 1994)),
and therefore, the court ruled that Deer Creek is not subject to
the regulations of the subdivision ordinance.  Plaintiff appeals
this ruling.
     The relevant facts of this case are undisputed.  Defendant is
the owner of approximately 70 acres of land in Montgomery County
upon which it has begun developing a private campground, Deer
Creek.  Deer Creek consists of approximately 770 recreational lots. 
No unit owners will be allowed to establish residency on any of the
lots.  Further, no improvements or roadways constructed on Deer
Creek will be dedicated to any governmental entity.  Defendant will
be responsible for the maintenance and upkeep of all improvements
and roads on Deer Creek.
     Originally, Deer Creek was entitled "Deer Creek Recreational
Campground."  On September 10, 1993, defendant applied to the
Montgomery County Board for variations to the subdivision ordinance
as pertaining to Deer Creek Recreational Campground.  The request
related to street size, lot size, building line width, sewage
disposal, and the construction of the roads.  Along with this
application, defendant filed a plat.  On October 12, 1993, the
Montgomery County Board denied the request for variations.
     After this denial, defendant filed a declaration converting
the form of ownership of Deer Creek to a condominium form of
ownership.  However, there is no indication that anything other
than the form of ownership changed with regard to the Deer Creek
property.  As the circuit court indicated, the plat filed with this
declaration appears identical to the plat filed with the request
for variations and exceptions.  Since the form of ownership of Deer
Creek was converted to a condominium form of ownership, defendant
argued that Deer Creek was no longer regulated by the subdivision
ordinance.
     On May 31, 1995, plaintiff filed an amended complaint seeking
a declaration of rights and an injunction.  Plaintiff requested
that the circuit court declare that plaintiff has the authority,
pursuant to the subdivision ordinance and the Plat Act, to regulate
the development of Deer Creek and that the court restrain defendant
from improving or selling any lots on Deer Creek without complying
with the provisions of the subdivision ordinance or the Plat Act.
     By August 18, 1996, each party had filed a motion for summary
judgment, and a hearing was conducted 10 days later.  A decision by
the circuit court was filed on January 2, 1997.  The decision
granted defendant's cross-motion for summary judgment and held that
Deer Creek is not subject to the subdivision ordinance or the Plat
Act.  In its order, the circuit court asked itself:  "If a
campground is developed under condominium laws, is it subject to a
county's subdivision ordinance and the Illinois Plat Act?"  The
court answered, "As this court understands the applicable law, the
answer is `no'."  The court went on to hold, "[Deer Creek] is not
a subdivision within the meaning of the Montgomery County
Subdivision Ordinance or the Illinois Plat Act."  
     The pivotal issue before us is whether Deer Creek is subject
to the regulations of the Montgomery County Subdivision Ordinance. 
Before addressing this issue, we note two concessions made by the
parties.  First, plaintiff concedes that Deer Creek is a
condominium pursuant to the Condominium Property Act.  765 ILCS
605/1 (West 1992).  Second, defendant concedes that Montgomery
County has the authority to enact ordinances to regulate the
development of condominiums.  See 55 ILCS 5/5-1041 (West 1992); 
City of Urbana v. County of Champaign, 76 Ill. 2d 63, 70-71 (1979). 
Defendant, in making this concession, specifically argues that the
subdivision ordinance enacted by Montgomery County applies to a
distinctly different type of development and that plaintiff has
failed to exercise its authority to enact regulations specifically
pertaining to a condominium development.  We disagree with
defendant's argument, and for the reasons which follow, we believe
that the Montgomery County Subdivision Ordinance does apply to Deer
Creek and that the circuit court erred in granting defendant's
cross-motion for summary judgment.
     We review a decision by the circuit court granting a motion 
for summary judgment under the de novo standard of review.  Kurtz
v. Wright Garage Corp., 262 Ill. App. 3d 1103, 1106 (1994).  Under
that standard, we are not restricted to the reasons for granting
summary judgment set forth by the trial court.  Best v. Services
for Cooperative & Condominium Communities, 256 Ill. App. 3d 462,
464 (1993).  
     First, we believe that Montgomery County has the power to
regulate Deer Creek, a condominium development, pursuant to its
subdivision ordinance.  A county derives its power to regulate land
developments from the Counties Code.  55 ILCS 5/5-1041 (West 1992). 
Section 5-1041 provides that a county has the power to regulate by
ordinance the course of streets or highways, storm-water runoff
channels, sewage collection, etc., in any "map, plat, or
subdivision of any block, lot or sub-lot or any part thereof or any
piece or parcel of land, not being within any city, village or
incorporated town."  55 ILCS 5/5-1041 (West 1992).  Because the
county has the power to regulate land developments, the next
question is whether the county can regulate a condominium pursuant
to its subdivision ordinance.
     The term subdivision is not defined in the Counties Code. 
However, the Illinois Supreme Court has determined that, pursuant
to the Illinois Municipal Code, a subdivision ordinance may apply
to a land development which does not involve the division of land
into two or more tracts.  City of Urbana v. County of Champaign, 76 Ill. 2d 63, 70-71 (1979); Ill. Rev. Stat. 1975, ch. 24, par. 11-12-
5.  In City of Urbana, the supreme court determined that a planned
unit development (PUD), which does not involve a division of land,
may be regulated pursuant to the subdivision ordinance of a
municipality.  City of Urbana, 76 Ill. 2d  at 70-71.  The supreme
court noted that the Illinois Municipal Code clearly recognized
that a municipality has a legitimate interest in regulating the
development of land near its borders to protect the health and
safety of its people and, therefore, the touchstone of a city s
power to impose subdivision controls is not the division of a tract
into two or more parcels but is its developmental impact upon
existing facilities protecting the health and safety of the
municipal residents.  City of Urbana, 76 Ill. 2d  at 70-71.  The
supreme court concluded that the PUD was a subdivision within the
statutory meaning, and the court then examined whether the city s
subdivision ordinance applied to the PUD.  City of Urbana, 76 Ill. 2d  at 70-71. 
     The Counties Code is similar to the Illinois Municipal Code in
that it grants the counties, as opposed to municipalities, the
power to regulate land developments within its boundaries.  We do
not believe that the scope of the term subdivision should be
construed less broadly in the Counties Code than in the Illinois
Municipal Code, where the same reasoning is applicable.  Using the
logic behind the decision in City of Urbana, we conclude that a
county also has a legitimate interest in regulating the development
of land within its borders to protect the health and safety of its
people, and merely because the land is not split into two does not
change the developmental impact on the county.  Therefore, we
conclude that a county may regulate a condominium development
pursuant to its subdivision ordinance.
     Therefore, our next task is to determine whether Deer Creek is
a subdivision as defined by the Montgomery County Subdivision
Ordinance.  Section II of the Montgomery County Subdivision
Ordinance defines a subdivision as follows:
          "9.  Subdivision.  For the purpose of these regulations
     a subdivision is either (1) the division of land into two (2)
     or more lots, sites or parcels of five (5) acres or less in
     area; (2) establishment of [sic] dedication of a road,
     highway, street or alley through a tract of land regardless 
     of its area; or (3) division of land heretofore divided or
     platted into lots, sites, or parcels, provided, however, that
     the sale or exchange of parcels of land to or between
     adjoining property owners where such sale or exchange does not
     create additional lots shall not be considered as a
     subdivision, and provided further, that a contract of sale
     requiring conformity with this ordinance may be entered into." 
     Montgomery County Subdivision Ordinance, II(9) (eff. May 8,
     1979).  
Throughout the circuit court proceedings, plaintiff argued that
Deer Creek is a subdivision pursuant to this ordinance because it
is essentially a division of land.  However, this argument has been
abandoned on appeal.  Plaintiff now argues that Deer Creek is a
subdivision pursuant to this ordinance because of the establishment
of roads through the land.
     Defendant argues that plaintiff has waived this argument on 
appeal because it was not raised in the circuit court.  Generally,
an argument not raised in the circuit court is considered waived
for purposes of appeal.  Snow v. Dixon, 66 Ill. 2d 443, 453 (1977)
(argument presented for the first time on appeal is deemed waived). 
However, as plaintiff correctly points out, waiver is a limitation
on the parties, not upon the jurisdiction of the reviewing court. 
Herzog v. Lexington Township, 167 Ill. 2d 288, 300 (1995).  A
reviewing court may consider an issue not raised in the trial
court, if the issue is one of law and is fully briefed and argued
by the parties.  People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d 1, 27 (1991).  The following issue is a question of law and
has been fully briefed by both parties.  Accordingly, we will
consider this argument.
     We begin our discussion of plaintiff's argument by noting that
the ordinance on its face clearly contains a misprint.  According
to the exact words of the ordinance, a subdivision is the
"establishment of dedication" (emphasis added) of a road. 
Montgomery County Subdivision Ordinance, II(9) (eff. May 8, 1979). 
Defendant argues that the term of should be construed as and.  Not
surprisingly, plaintiff argues that the term of should be construed
as or.  Based upon our rules of statutory construction, we
subscribe to plaintiff's interpretation.
     In construing an ordinance, the same rules employed in
statutory construction apply.  In re Application of County
Collector of Kane County, 132 Ill. 2d 64, 72 (1989).  Effect should
be given to the drafter's intention as evidenced by the terminology
used, the goals and purposes, the natural import of the words used
in common and accepted usage, and the general structure of the
ordinance.  Knor v. Madison County, 151 Ill. App. 3d 767, 774
(1986).  Finally, a court should not adopt a construction which
renders words or phrases superfluous.  Application of County
Collector, 132 Ill. 2d  at 72.  
     We believe that a construction of the term of as and would
effectively render the word establishment superfluous.  According
to Black's Law Dictionary, the definition of the word dedication is
"[t]he appropriation of land *** by the owner, for the use of the
public, and accepted for such use by or on behalf of the public." 
Black's Law Dictionary 412 (6th ed. 1990).  If we inserted into
this definition the term a road for the term land, then not only
must the road be appropriated for the use of the public, it must be
accepted for such use by or on behalf of the public.  We are not
cognizant of a situation wherein a road, street, alley, or tract of
land may be dedicated when it has not been established.  Neither
party cites a case where this is possible.  If a road is not
established, there is nothing for the owner to appropriate or for
the public to accept.  Therefore, we believe that a construction of
the term of as and would effectively render the word establishment
superfluous.
     In addition, we believe that a construction of the term of as
or better fulfills the intent of the county in enacting this
ordinance.  A county has a legitimate interest in regulating the 
development of land within its borders to protect the health and 
safety of its people.  City of Urbana v. County of Champaign, 76 Ill. 2d 63, 70 (1979).  In examining the purpose of a subdivision
ordinance, we turn to our court's decision in People ex rel. La
Salle County v. Grundy County National Bank, 97 Ill. App. 3d 101
(1981), cited by both parties on appeal.  In Grundy County National
Bank, a developer sought to convert a mobile home park to a
condominium form of ownership.  The defendant intended to sell
cubicles of air over pads and give each owner an undivided interest
in the common elements, including the land below.  Grundy County
National Bank, 97 Ill. App. 3d at 102.  The county argued that this
conversion was not allowed under the Condominium Property Act and
that it should be regulated under the county's subdivision
ordinance.  The court held that the Condominium Property Act did
not encompass such a conversion.  Grundy County National Bank, 97
Ill. App. 3d at 103.
     Although that case has apparently been overruled by
legislative action, the reasons for the overruling are not relevant
to the instant case.  We believe that the reasoning behind this
court's decision remains viable.  In Grundy County National Bank,
this court warned:  
          "The type of conversion which defendants envision is
     essentially nothing more than a subdivision of the existing 
     park.  If defendants' argument was accepted, a developer who
     owned land which he divided into lots, and on which he
     constructed single residence dwellings, could sell each
     residence as a unit with certain areas commonly owned, call 
     it a condominium, and avoid any subdivision requirements
     imposed by the county in which the land was located.  We do 
     not believe the legislature intended to pass an act under
     which such a result could occur.  The State granted the
     counties the right to set restrictions in subdivisions under
     the theory that a county is in the best position to determine
     what is necessary to protect its residents.  It would not pass
     a piece of legislation allowing the county's power to be
     circumvented."  (Emphasis added.)  Grundy County National
     Bank, 97 Ill. App. 3d at 102-03.
The actions taken by the defendant in the instant case and the
result of those actions appear to be the actions and result
intended to be prevented by the court in Grundy County National
Bank.  In the instant case, defendant originally proposed a
development entitled "Deer Creek Recreational Campground."  When a
request for variations from the Montgomery County Subdivision
Ordinance was denied, an apparent attempt to circumvent the
ordinance was made by changing the form of ownership of Deer Creek
to a condominium.  An identical plat was filed indicating that the
physical nature of the property and the effects upon the health and
safety of the county would remain unchanged.  An interpretation of
the term of as and would allow such a conversion to escape the
regulations of the Montgomery County Subdivision Ordinance as long
as the development did not dedicate a road.  We do not believe that
the county would pass an ordinance allowing the county's authority
to be circumvented merely because the development changes its form
of ownership, especially where the impact as to the health and
safety of the people of the county remains unchanged.  A
construction of the term of as or would not allow such a
circumvention.
     In light of the arguments above, we believe that the term of,
as a matter of law, must be construed as or.  Having construed this
term as such, it is clear why Deer Creek falls within the
Montgomery County Subdivision Ordinance s definition of
subdivision.  
     The definition applies to the establishment or dedication "of
a road, highway, street or alley through a tract of land regardless
of its area."  Montgomery County Subdivision Ordinance, II(9)
(eff. May 8, 1979).  There is no dispute between the parties that
roads will be established on Deer Creek.  Therefore, Deer Creek is
a subdivision within the meaning of the subdivision ordinance
because of the establishment of roads through Deer Creek.
     Defendant provides several arguments as to why Deer Creek
still remains outside this definition.  First, defendant argues
that none of the roads on the land bisect the campground or run
"through" Deer Creek.  Defendant turns to the portion of the
ordinance which specifically provides for the establishment of
roads "through a tract of land" and contends that this must be
interpreted as a road going from one end of the land to the other. 
Defendant cites to Black's Law Dictionary to support its
interpretation of the word through.  The word through, as argued by
defendant and defined in Black's Law Dictionary, means "end to
end".  Black's Law Dictionary 1328 (5th ed. 1979).  However, a
further examination of Black's Law Dictionary, which defendant
fails to reveal, shows that the word through is also defined as
"in" or "within".  Black's Law Dictionary 1481 (6th ed. 1990).  The
definition of the word through in its entirety is as follows:
     "Through.  By means of, in consequence of, by reason of; in,
          within; over; from end to end, or from one side to the
          other."  (Emphasis added.)  Black's Law Dictionary 1481
          (6th ed. 1990).
Defendant provides no reason why we should apply the words from end
to end from the definition but ignore the words in or within. 
Defendant does not argue that the natural import of the word
through does not include "in" and "within", but defendant only
argues that the commonly understood definition of through is from
"end to end".  We will not haphazardly pick and choose commonly
understood definitions and ignore others, especially without a
sufficient reason for doing so.  Therefore, we shall construe the
word through to mean "in", "within", or "from end to end".  Because
there is no dispute that Deer Creek contains the establishment of
roads in and within the campground, we believe that this is
sufficient to meet the classification of roads through the land as
provided in the subdivision ordinance.
     Next, defendant argues that the roads established in Deer
Creek are not for public use and that the determinative fact with
regard to this definition in the ordinance is the creation of a
road for public use.  We find nothing in the ordinance which
mandates that the road established on the land must be a public
road in order for it to fall within the purview of the subdivision
definition.  A subdivision is merely the establishment of a road
through a tract of land and does not require, either expressly or
impliedly, that the road be public.  Defendant argues that such a
construction triggers the application of the ordinance to roads
like circular driveways and farm roads.  However, as these
hypothetical facts are not before us on appeal, we will not address
their applicability.  We reject this argument made by the
defendant.
     Finally, defendant argues that because the road is not
dedicated, it is not within this definition of subdivision.  As we
explained earlier, the definition provides for establishment or
dedication, and merely because the road is not dedicated does not
exclude it from this definition.  Therefore, we conclude that Deer
Creek is a subdivision within the Montgomery County Subdivision
Ordinance, and it is subject to the regulations provided by such
ordinance.
     In light of our decision, we need not address the issue of the
applicability of the Plat Act.
     Before concluding, we note that defendant raises the issue of
whether the plaintiff is prevented from enforcing the subdivision
ordinance based upon the principles of equitable estoppel and
laches.  This issue was not decided by the circuit court;
therefore, we remand this case to the circuit court for further
proceedings not inconsistent with this order.
     For the foregoing reasons, the decision of the circuit court
granting defendant's cross-motion for summary judgment is hereby 
reversed.  We remand this case for further proceedings.

     Reversed and remanded.

     HOPKINS and CHAPMAN, JJ., concur.